APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PETERSEN, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
On November 17, 1969, a jury found the defendant, Glenn M. Richardson, to be a sexually dangerous person, and the court committed him to the guardianship of the Director of Public Safety pursuant to the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1969, ch. 38, par. 105-1 et seq.). Thereafter, in 1973, the defendant's petition for conditional release was denied. On appeal, the defendant contends that the evidence adduced at the 1969 hearing, which resulted in the defendant's commitment as a sexually dangerous person, failed to establish the requirement that the defendant's condition had existed for not less than one year (Ill. Rev. Stat. 1969, ch. 38, par. 105-1.01), and therefore the 1969 original commitment of the defendant should be vacated. In addition, the defendant contends that the trial court improperly denied his petition for conditional release since the evidence established that the defendant no longer appeared to be dangerous, although it was impossible to determine with certainty that he had fully recovered.
We hold that an appeal from the original commitment order of November 17, 1969, is untimely. However, we agree that the defendant's petition for conditional release was improperly denied under section 9 of the Act (Ill. Rev. Stat. 1973, ch. 38, par. 105-9), and we therefore reverse and remand with directions to hold a new hearing.
On September 8, 1969, the defendant was indicted for two separate offenses of attempt rape, which allegedly occurred on August 15, 1969, and August 19, 1969. Thereafter, pursuant to the Sexually Dangerous Persons Act, the State's Attorney of Kane County filed a petition alleging that the defendant was a sexually dangerous person as defined by statute. (Ill. Rev. Stat. 1969, ch. 38, par. 105-1.01.) On November 17, 1969, after a full hearing, a jury found the defendant to be a sexually dangerous person, and the court committed the defendant to the guardianship of the Director of Public Safety. No appeal was taken from this order.
On March 7, 1973, the defendant filed a petition for release, or in the alternative, for conditional release, and the court ordered the Director of Public Safety to prepare a socio-psychiatric report concerning the defendant. At the hearing on April 25, 1973, the court determined that the report was inconclusive and denied the defendant's petition.
However, based on a subsequently filed socio-psychiatric report, the court granted the defendant a further hearing on his petition. Excerpts from this socio-psychiatric report prepared by Dr. Perez, who also testified in court, follow.
"The offense for which he is now incarcerated does not appear as a compulsive element of this man's habits. It does not form part of an inevitable pattern that repeats every time he feels frustrated or exasperated.
Mr. Richardson classifies as mentally ill. I have no way to guarantee how he will react in the future. I cannot say that he will and I cannot say that he will not commit errors of judgment. Up to the present, we find no pattern of compulsivity in this man for this particular type of offense.
We find poor judgment; however, we cannot equate this with the more ominous connotations that a diagnosis of sexual dangerousness seems to represent, at least in our judgment.
It is also likely that an institution other than a maximum security might be the best or optimum for the management of this man's aberations."
At the hearing held on August 30, 1973, the defendant testified that if his petition were granted he would observe any conditions imposed by the court, that if placed at Elgin State Hospital, he would observe the regulations of that institution, and that his parents and brother resided in Elgin. On cross-examination, he testified that he was taking certain medications prescribed by doctors at Menard State Penitentiary and supplied by his parents.
The father of the defendant testified that if the defendant were released, he would cooperate fully with any conditions imposed by the court, and that he would continue to obtain the prescribed medications for his son.
Dr. Frank Perez, a psychiatrist and consultant to the Psychiatric Division at Menard State Penitentiary, testified at length concerning his report on the defendant and the defendant's mental disorder. He testified that he had officially examined the defendant on seven different occasions between March, 1970, and the time of the hearing, and that he informally had met with the defendant on numerous occasions during that time. Based upon his observations of the defendant, Dr. Perez reiterated his report that in his opinion, although the defendant was mentally ill, he was not sexually dangerous. He further testified that in his opinion the defendant could be conditionally released from Menard Penitentiary and placed at Elgin State Hospital. However, Dr. Perez stated that he could not "guarantee" that the defendant would never exhibit the ...